By: Karen L. Piper
The NLRB, National Labor Relations Board, has issued a series of decisions in the past few years finding unlawful various employer work rules because the rules might deter employees from engaging in protected Section 7 rights. The NLRB’s jurisdiction in this area is not limited to unionized workplaces. Its latest decision involved William Beaumont Hospital, Case 07‑CA-093885 (4/13/2016). The hospital’s employees were not unionized.
Section 7 of the Act guarantees employees the rights to form and join unions, to bargain collectively and to engage in other conduct for their mutual aid and protection. Work rules violate employees’ Section 7 rights if:
- they expressly restrict Section 7 activity;
- they are promulgated in response to union activity;
- they are applied to restrict employees’ exercise of Section 7 rights; or
- employees would “reasonably construe” the language of the rule to prohibit Section 7 activity.
The Beaumont Hospital case involved the discharge of two labor and delivery nurses for bullying and intimidation in connection with a hospital investigation following the death of a baby. All three members of the NLRB panel agreed that the nurses’ discharges were lawful. However, in reviewing this matter, two members of the panel found several of the hospital’s work rules unlawful. The rules applied to employees working in surgical services and perianethesia. The stated purpose of the rules was “to foster effective working relationships among all hospital employees and physicians in order to provide and maintain high quality and safe patient care.” The Introduction to the rules said, in part, that conduct “that impedes harmonious interactions and relationships will not be tolerated.” The NLRB found that this language was “sufficiently imprecise” and could deter any disagreement or conflict among employees, including those relating to employees’ Section 7 rights.”
The NLRB also found illegal the following rules because they were too broad and/or might deter employees’ Section 7 activity:
- Verbal comments or physical gestures that exceed the bounds of fair criticism;
- Negative or disparaging comments about the moral character or professional capabilities of an employee or physician made to employees, physicians or visitors; and
- Behavior that is counter to promoting teamwork.
In light of the NLRB’s ongoing scrutiny of employer work rules, even in non-unionized workplaces, employers should review their work rules with employment counsel familiar with employees’ Section 7 rights, such as the author, an update their rules, as needed.
This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or firstname.lastname@example.org.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2016.